1
Neutral Citation Number: [2005] IEHC 399
THE HIGH
COURT Record Number:
1995 No. 2039P
Between;
Michelle Quinn
Plaintiff
And
South Eastern Health
Board
Defendant
Judgment of Mr Justice Michael Peart
delivered on the 30th day of November 2005:
By Notice of Motion dated the 14th May 2004
the plaintiff seeks to have the Court review the decision of the
Taxing Master on the ground that the allowances made by the Taxing
Master in respect of the Brief Fee for Senior Counsel and Junior
Counsel are inadequate. This was a medical negligence action, and
the Brief fee for Senior Counsel was claimed at €47,615.18, and that
for Junior Counsel was claimed at €31,743.45, being two thirds of
the latter.
The fees
were at first allowed on taxation by the Taxing Master were €22,500
for Senior Counsel and €15,000 for Junior Counsel, but, as the
Taxing Master has stated in his Report to the Court, having
considered written and oral submissions on the hearing of objections
and having considered the nature of the case, the extent of the work
involved and having carried out a revised careful examination and
consideration of the sums allowed in the several comparable cases
referred to by the defendant, and relying on his own experience of
fees allowed in similar matters, he concluded that the sum allowed
on taxation was "slightly on
the light side", and he
increased these Brief fees to €26,000 and €17,333
respectively.
The
circumstances in which the claim arose were that when the plaintiff
was fourteen years of age she suffered from appendicitis which
resulted in an appendectomy being performed in November 1993. She
was discharged from hospital after about ten days, but after a short
time she began to experience pain in her right thigh. By April 1994
she was referred to an orthopaedic surgeon, but was later referred
to another surgeon who diagnosed that she was probably suffering
from a form of meralgia
parasthetica due to an
irritation of the lateral cutaneous nerve of the thigh. She was
injected several times which gave her some temporary relief, but
eventually the neurologist advised that surgery was necessary which
would result in a division of the lateral cutaneous nerve of the
thigh.
The parents of
the plaintiff contended later that they were never advised that
there was risk attached to this procedure. That operation was
carried out in August 1994, and in the months which followed, it
appears that her condition regressed to the point that she was worse
off than before the operation the previous August, and that she was
suffering considerable pain in her right leg, as well in her groin
and lower abdomen. She was then referred to a neurologist, and it
appears that as a result of the operation which had been performed
it was not possible for that neurologist to determine what nerve or
nerves might be implicated in the plaintiff's then condition.
Without going into the effects of this continuing pain on the
plaintiff in full detail, it is safe to say that she was suffering
from considerable and ongoing pain in that area of her body, and
that in the years which followed she continued to suffer greatly,
and her quality of life was greatly diminished, with symptomology
likely to continue.
The
case came on for trial on the 11th July 2001 and was heard over a
period of three days. Judgment was reserved until the 22nd March
2002, when the plaintiff succeeded in her claim of negligence, and
was awarded damages in the sum of €300,000. The learned trial judge
was satisfied on the evidence of the plaintiff's expert medical
witness that the neurectomy had been the wrong treatment, that there
had been no informed consent to that operation, and that in relation
to the first operation, namely the appendectomy the doctrine of 'res
ipsa loquitur' applied.
By order of the learned High Court judge, the
plaintiff was, in addition to her damages, awarded her
"costs of this action when
taxed and ascertained, to include reserved costs and costs of
issues".
Before
dealing with the submissions of Counsel, I will give some detail
from the Report of the Taxing Master dated 21st October 2004. He
states, inter alia, that at the hearing of the objections it had
been submitted that he had failed to have due regard to matters
relevant to the size of the Brief fee for Counsel, such as the fact
that Counsel had committed to this case as far back as 1994 and
"had a wholly interactive and
hands on approach throughout the matter, which was wholly
necessitated by the unique features of this case and the absence of
explanations, facts, details, documents and reporting on the
plaintiff's symptoms".
He
states also that he had been referred to passages from the reserved
judgment of O'Caoimh J. which had outlined the difficult issues
involved in the case, and also the extensive report of the
plaintiff's medical expert witness. In addition he had been referred
to an e-mail from Senior Counsel involved in the case to the
instructing solicitor, and in which Senior Counsel requested that he
provided with medical research in the area from 1960, as well as any
articles referred to in such research on an urgent basis so that he
could "become an expert on
the subject of meralgia parasthetica". The Taxing Master also noted that he had
been furnished with Counsel's notes, and that he had also been
referred to the significance and relevance of the extent of
discovery which Counsel had to consider and the necessity for
Counsel to master the medical research and literature necessary for
the preparation for the case.
The Taxing Master states that having
considered all submissions he concluded that the claimed Brief Fee
for Senior Counsel was "excessive and exceptionally high", and after
reconsideration of the matter had considered that €26,000 to be fair
and reasonable, and a fee which "more accurately represented the going value
for such an action".
He went on as follows:
"A major significant factor in this case was
the limited amount of liability expert reports. The only liability
witness was Mr Russell, neuro surgeon, who furnished one report.
Secondly, Counsel had the benefit of a very thorough and detailed
pre-trial consultation for which a sum of €2000 was allowed. A
significant amount of the discovery documentation was to hand and
examined by both Senior and junior Counsel when the settling of the
Statement of Claim in November 1998 [sic]. It is also a common
feature of medical negligence claims that Senior Counsel is involved
throughout the lifetime of such litigation advising on numerous
matters.
I have
also had the benefit of examining the notes prepared by Senior
Counsel for the hearing of this action. I would not class this as an
unusual aspect on the part of Senior Counsel in such an action. I
accepted fully that Counsel prepared professionally and thoroughly
for the hearing. It is his professional duty to do so. In my opinion
the Brief fee now allowed by me adequately remunerates for this
reading in and preparatory work including the first day in Court.
The refresher fees allowed by me were again the going rate and
reasonable. Neither party has objected to them.
The Courts have
directed that the Taxing Master must have regard for the fees
allowed in comparable cases. It is impossible to have two identical
cases. Therefore the fees taxed or allowed in other cases are only a
guide, but a very compelling guide. It must be borne in mind that
the hearing of the action was in July 2001. The fees allowed are
what I considered fair and reasonable and the proper going rate at
that time. I carried out a careful analysis and comparison with all
the above cases referred to in arriving at my determination. It was
also evident that no negotiation at all took place between solicitor
and counsel in determining a reasonable Brief fee for the case. I
was satisfied that no reasonably careful and prudent solicitor would
offer to Counsel based on his experience and knowledge of fees
charged and paid in cases of a similar cases [sic] a Brief fee of
the magnitude marked by Senior Counsel on this case. It is in my
opinion tantamount to a special fee and thus not allowable on a
party and party basis. Further I had regard for the amount of
damages allowed in each of the other cases."
James Salafia SC (who was not the Senior
Counsel for the plaintiff in the action itself) has made an initial
submission that the order of the Court (O'Caoimh J.) did not award
to the plaintiff only part of her costs, but rather "her costs", and
that any interference by the Taxing Master by way of reduction of
Senior Counsel's fee and thereby Junior Counsel's fee is an
interference with the intention of the Court when it awarded the
plaintiff her costs of the action. He submits that an experienced
and competent plaintiff's solicitor has agreed a certain fee with
the Senior Counsel of his choice and that the decision of the Taxing
Master has the effect now of depriving the plaintiff of a
significant portion of her damages unless either her solicitor or
Counsel themselves accept a fee less that that marked and
agreed.
Mr Salafia has
referred to the provisions in the Rules of the Superior Courts in
Order 99, r. 37(18) RSC where it is provided that the Taxing Master
shall allow all such costs, charges and expenses as appear to him to
be necessary for the attainment of justice, and to the judgment of
Gannon J. in Heffernan v. Heffernan, unreported, High Court, 2nd
December 1974 to the effect that the onus is on the defendant to
establish that the fee marked is the result of factors such as over
caution, negligence, mistake, or that it is unreasonable in amount
or unreasonably incurred. Mr Salafia has submitted that unless it is
shown that the fee marked comes within any of these terms, it should
not be interfered with. He has also referred to the practice which
had grown up over many years where Counsel's fee had been based not
on actual work done, but rather on some 'going rate' basis or
hypothetical basis of assessing what might have been done, whether
it was done or not. He suggests that this practice was sought to be
justified in those days on the basis that it was inappropriate for
the Taxing Master to actually inquire into what work was actually
done by counsel in order to earn the fee marked.
However, Mr Salafia
refers to the changes brought about in this regard by s. 27 (1) of
the Courts and Court Officers Act, 1995 ("the 1995 Act") which
provides as follows:
"27. -- (1) On a taxation of costs as between
party and party by a Taxing Master of the High Court, or by a County
registrar exercising the powers of a Taxing Master of the High
Court, or on a taxation of costs as between solicitor and client by
a Taxing Master of the High Court, the Taxing Master (or County
Registrar as the case may be) shall have power on such taxation to
examine the nature and extent of any work done, or services rendered
or provided by counsel (whether senior or junior), or by a
solicitor, or by an expert witness appearing in a case or any expert
engaged by a party, and may tax, assess and determine the value of
such work done or service rendered or provided in connection with
the measurement , allowance or disallowance of any costs, charges,
fees or expenses included in a bill of
costs."
Mr Salafia
refers to this provision when he submits that the Taxing Master may
now have regard to the actual work done by Counsel in the case, but
that, given the opening words "on a taxation of costs", the
provisions of O.99 RSC still apply, and that accordingly the
discretion permitted to the Taxing Master under the Rules is still
applicable and not removed by the provisions of s. 27(1) of the 1995
Act. In other words it is submitted that s. 27(1) of the 1995 Act
gives him additional powers but not in any way which is a substitute
for the discretion contained in O.99 (1) RSC.
He submits that the Taxing Master cannot
simply substitute his own opinion of a proper fee, but must form the
view that the fee marked or agreed with Counsel is a fee which no
reasonably careful, experienced and prudent solicitor would agree.
It is worth recalling at
this point that the Taxing Master noted in his Report in this case
that there had been no negotiation with Counsel as to the fee, and
it is also the case that the fee was not agreed in advance by the
solicitor, but rather that it was simply marked by Counsel after the
case concluded. Mr Salafia has submitted in that regard that in fact
it may only be at the end of the case that the solicitor will be in
a position to say what level the Brief fee should be agreed at.
But returning to the provisions of s. 27(1)
of the 1995 Act, Counsel has submitted that in his examination of
the work done by Counsel for the purposes of determining whether the
fee is appropriate in all the circumstances, the Taxing Master must
look at the work done by Counsel from the time of first involvement,
consider what difficulties were encountered at that time and how
these difficulties were addressed and resolved over the years
between commencement and conclusion of the action, and that the
Taxing Master was in error by looking at the judgment of the learned
High Court judge and deciding that the case was simply won on the
basis of a single expert medical witness, and that this approach
does not do justice to the amount of work required to be done in
order to bring about the situation where the trial judge was
persuaded that the defendant was negligent. In this regard, Mr
Salafia has referred to the fact that while only one medical expert
had been called and who gave evidence in line with his Report, there
were other experts consulted and who gave reports during the lead up
to the hearing, but who were not called, but that that does not lead
to the conclusion that to consult these other experts was not a
necessary part of the preparation for the case.
In relation to the submission that s. 27(1)
of the 1995 Act does not substitute the discretion enjoyed by the
Taxing Master under O.99 RSC, Mr Salafia has referred to the
provisions of that rule, which provides as
follows:
"In
exercising his discretion in relation to any item, the Taxing Master
shall have regard to all relevant circumstances, and in particular
to:
(a) the
complexity of the item or of the cause or matter in which it arises
and the difficulty or novelty of the question
involved;
(b) the
skill, specialised knowledge and the responsibility required of, and
the time and labour expended by the
solicitor;
(c) the
number and importance of the documents (however brief) prepared or
perused;
(d) the place
and circumstances in which the business involved is
transacted;
(e) the
importance of the cause or matter to the
client;
(f) where
money or property is involved, its amount or
value;
(g) any other
fees and allowances payable to the solicitor in respect of other
items in the same cause or matter but only where work done in
relation to those items has reduced the work which would otherwise
have been necessary in relation to the item in
question."
Mr Salafia
has submitted that none of these criteria were addressed by the
Taxing Master in his consideration of Counsel's
fee.
It is also submitted
that while the taxation process is one by which the defendant in
this case can be protected in the matter of what costs are payable,
it is also the case that the defendant had it within its own power
to limit the extent of the case and the fact is that this action was
fought on all issues raised and no concessions or admissions were
made. It was therefore necessary for the plaintiff's legal team to
be fully prepared to fight all the issues and that justice would
therefore require that the plaintiff should be entitled to be
indemnified in relation to the cost involved in so
doing.
It has been
submitted also that the instructing solicitor must have regard to
what the appropriate fee is having regard to what he has referred to
as "the market place" and in this regard he suggests that the market
place is not judged by what is allowed on taxation in other cases,
but rather by what is marked by Counsel, and that in this regard it
is relevant to the question of what constitutes "the market" to
refer to the fact that there are just two Taxing Masters in the High
Court, and that they cannot be seen therefore as determining the
market place.
There
are some specific criticisms made by the plaintiff of the Taxing
Master's decision - for example, that he did not have regard to a
detailed letter from Senior Counsel which sets out the complex
nature of the case and the extent of the work necessary for the case
on his part, and the basis and reasons for the Brief fee and other
fees marked, and that the Taxing Master has not carried out the
detailed analysis required of him by s. 27(1) of the 1995 Act or O.
99 RSC. The fact that the Taxing Master referred to the fact that
only one expert had been called by the plaintiff is also criticised
on the basis that it underestimates the complexity of this case and
the number of experts' consulted and who gave reports, as is his
statement that Counsel had to consider the discovery documentation
for the purpose of drafting the Statement of Claim. In regard to the
latter, it is submitted that this shows a misunderstanding on his
part between the consideration of discovery for the purpose of
drafting the Statement of Claim and the consideration required for
the purpose of preparing himself for the case itself where it would
be necessary to be in a position to competently cross-examine any
medical experts who may have been called by the defendants. It is
fair to say that considerable emphasis is placed on the fact that in
a medical negligence case it is necessary for Senior Counsel to have
very thoroughly prepared himself so that he could adequately
cross-examine expert medical witnesses, and that this must be
recognised in the fee marked.
It is also submitted that the Taxing Master
was wrong to regard the fee marked as being in the nature of a
special fee. Mr Salafia submits that there is no basis in this case
for regarding the fee as containing an element of 'special fee' and
he accepts that any such special fee element would be a matter for
solicitor/client costs rather than party and party
costs.
In relation to the
use of comparators, Counsel has submitted that the cases considered
by the Taxing Master were irrelevant and misleading, because they
are meaningless unless it can be shown that they involved the same
amount of work in the context of similar issues, and that the work
was actually done in those cases. Reference is made to the fact that
in m any cases the fee actually marked by counsel is withdrawn by
Counsel on the basis that he or she cannot show working papers or
provide evidence as to the work actually done so that the fee can be
justified, and that this is in contrast to the present case where
Counsel's notes and other material was provided to the Taxing Master
in order to show the work actually done by Senior Counsel. It is
also noted that while it was open to the defendant to call evidence
before the Taxing Master in order to challenge what was stated by
Counsel as to the work done, so that Counsel could thereby have been
afforded an opportunity to give evidence himself as to the work
undertaken. In these circumstances where the basis of the fee is not
challenged by the defendant in such a way, that the fee should be
reduced in the way it was.
Emphasis has also been placed on the fact
that the Taxing Master has not placed any importance on considering
the fee from the standpoint of a solicitor acting reasonably
carefully and reasonably prudently. In this regard, Mr Salafia has
referred to the judgment of Hamilton J. (as he then was) in
Kelly v. Breen [1978]
I.L.R.M. 63 at p. 68 where
that learned judge stated:
"…2. It is the function of the practising
solicitor --
(a) to
select counsel competent in the field of work to which the brief
relates, and
(b) to
determine the proper and reasonable fee which such counsel, namely a
counsel competent in the field of work to which the brief relates
and not a particular counsel whom the solicitor may wish to brief
would be content to take.
3. In the determination of such fee the
practising solicitor should act reasonably carefully and reasonably
prudently and should have regard to his day to day and year to year
experiences in the course of his
practice.
4. These
experiences include, inter alia, fees charged and paid in respect of
cases of a similar nature, the practice of barristers as to marking
fees in so far as accepted by solicitors in practice, fees paid to
the opposing counsel in the same matter, subject to whatever factors
might be special to the case, and the depreciation in the value of
money."
Having regard
to these remarks and the provisions of s. 27(1) of the 1995 Act, Mr
Salafia has submitted that the Taxing Master is now only entitled to
disallow any, or any part of a solicitor's disbursements, including
Counsels' fees, if he or she is satisfied that no solicitor acting
reasonably carefully and reasonably prudently based on his
experiences in the course of his practice would have made such
disbursements in the course of his practice having regard to the
work actually done and the services actually rendered by counsel
which were necessary for the successful prosecution, or Defence, as
the case may be, of the action.
Eileen Barrington BL for the defendant has
commenced her submissions by submitting that before this Court
should interfere with the decision of the Taxing Master it would be
necessary for the plaintiff to identify some error in principle in
his consideration of counsel's fee, and that none such has been
identified in the case put forward by Mr Salafia on behalf of the
plaintiff.
She submits
that the nature and complexity of the case is not underestimated or
misunderstood by the Taxing Master.
Ms. Barrington has also submitted that the
introduction of s. 27 (1) of the 1995 Act fundamentally changed the
manner in which fees are considered, and that it gave the Taxing
Master greatly increased powers to delve into and consider the
actual work done by Counsel in a case so that the appropriateness of
the fee charged can be assessed. She submits that the market place
to which Mr Salafia referred is more correctly described by
reference to what a plaintiff's solicitor and a defendant's
solicitor would agree was the reasonably appropriate fee for the
work involved. She submits also that these changes have resulted in
the Taxing Master becoming a specialist tribunal, and that the
Court's review of the taxation is now in the nature of a judicial
review and that the Court should interfere only if there is an error
shown which would lead to injustice, and that some measure of
'curial deference' must be paid to the office of the Taxing
Master.
In this regard,
the Court has been referred to the provisions of s. 27(3) of the
1995 Act dealing with the power of this Court on a review of
taxation, and which provides as follows:
"27.--
(3) The High Court may review a decision of the Taxing Master of the
High Court………made in the exercise of his or her powers under this
section, to allow or disallow any costs, charges, fees or expenses
provided only that the High Court is satisfied that the Taxing
Master has erred as to the amount of the allowance or disallowance
so that the decision of the Taxing Master …is
unjust."
Ms.
Barrington has referred to the judgment of Kearns J. in
Superquinn Limited v Bray UDC
& ors. [2001] 1 IR 459 in which the learned judge considered the
effect of s.27 on the procedure for review of taxation by the Court.
The learned judge regarded as correct the view, expressed by the
Taxing Master in his Report (relating to the taxation of costs in
relation to export credit issues) in Minister for Finance v. Goodman
(No.2), when the Taxing Master stated:
"The Act [of 1995] bestows a right on me to
examine the nature and extent of work carried out by counsel and
solicitor and determine the value of that work in relation to the
case. This removes the limitation on my discretionary powers if in
fact there were limitations on that discretion. Also I have the
power to allow in whole or in part expenses that were incurred that
I consider are fair and reasonable with regard to the circumstances
of the case."
Ms
Barrington also referred to the fact that Ms. Justice Laffoy has
also expressed the view in Minister for Finance v. Goodman (No.2) [1999] 3 IR 333 at p. 349
that:
"While this
point was not addressed by counsel, it seems to me that sub-ss (1)
and (2) of s. 27 have introduced a fundamental change in relation to
the function of the Taxing Master in the taxation of solicitors'
disbursements, including counsel's fees. Before the coming into
operation of the Act of 1995, it was no part of the function of the
Taxing Master to make a value judgment as to what the disbursements
should be. However, by virtue of sub-s. (1) it is part of his
function to examine the nature and extent of work to which
disbursements relate and to determine the value of the work done or
the service rendered. By virtue of sub-s. (2) his function is to
assess what he consider in his discretion to be a fair and
reasonable allowance for the work done and service
rendered."
In
Superquinn, Kearns J. considered the extent to which the change in
the powers of the Taxing Master has resulted in a change also in the
powers of the High Court on review of the decision of the Taxing
Master. In that regard, he states at p. 475:
"Under the old system, the court had a wide
ranging remit and, in the context of a review under O.99, r. 28,
could "make such order as may seem just".
Now under s. 27(3) of the Act of 1995 it can
intervene 'provided only that the High Court is satisfied that the
Taxing Master … has erred as to the amount of the allowance or
disallowance so that the decision of the Taxing Master is
unjust."
This
wording seems to represent a significant shift of emphasis and to
impose a heavier burden on any party seeking to challenge a ruling
of the Taxing Master…….. It would suggest when taken in conjunction
with s. 27(1) and (2), that the court should exercise a considerable
amount of judicial restraint in the context of a review, although it
must clearly intervene if failure to do so would result in an
injustice."
Ms.
Barrington submits that not only must it be shown that the Taxing
Master has made an error of principle but also that it is such as to
result in an injustice to the plaintiff. In that regard she has
referred to the fact that the question as to what might be
sufficient to constitute an injustice was also referred to by Kearns
J. in Superquinn, and that he considered that such an error to
constitute an injustice would have to be of the order of 25%, and
that translating that formula into the present case, this Court
would have to be satisfied that the Brief fee for Senior Counsel in
July 2001 should have been at least €32,500 (i.e. €25,000 +
25%).
Ms. Barrington
submits that there has been no error of principle identified by the
plaintiff in these proceedings, unlike a number of other cases to
which she has referred, such as Doyle v. Deasy & Company Ltd,
unreported, High Court (O'Caoimh J.), 21st March 2003 where the
learned judge identified a number of errors of principle such as the
rejection of comparative cases on a "blanket basis", and the
overestimation by him of the complexity of the case based on an
undue regard for some irrelevant material before him, as well as the
admission into evidence before him of a statement of evidence by the
plaintiff, and which was not evidence given in the case itself.
On the other hand, Mr
Salafia has submitted that it is incorrect to say that an error of
principle must be identified. Rather, he submits that it is
necessary, as appears from s. 27(3) of the 1995 Act, to show that
the Taxing Master has "erred
as to the amount of the allowance … so that the decision of the
Taxing Master … is unjust."
She has also submitted
that in the conduct of the taxation the Taxing Master must, as found
in Best v. Wellcome
Foundation [1996] 3 I.R. 378, adopt the standard of the practising
solicitor who is reasonably careful and reasonably prudent, and that
the Court should be careful not to deal with the review on the basis
of an appeal on the merits. In other words that the Court should not
find in favour of the plaintiff on this motion simply because on the
same material this Court might allow a higher Brief fee to
counsel.
Conclusions:
Mr Salafia has made submissions based on the
Taxing Master firstly having a discretion in the matter of Counsel's
fees emanating from O.99, r.37(22)(ii) RSC, the factors therein
contained being said to be secondary to the primary criterion as now
provided by s. 27(1) of the Act of 1995. I think that this is an
incorrect starting point in fact, since in my view the matters
referred to in O.99, r.37(22)(ii) RSC appear to be matters to be
considered in relation to a consideration of the solicitor's
instruction fee rather than Counsel's fees. This is evident in my
view firstly from paragraph (b) of that rule which refers to "the
skill, specialised knowledge and responsibility required of, and the
time and labour expended by, the solicitor."(my emphasis). There is no mention of
'counsel' in that paragraph. Paragraph (g) refers also only to "the
solicitor".
It appears
to me that Counsel's fees are addressed in O.99, r.37(18) which
provides that the Taxing Master shall allow on every taxation "all
such costs, charges and expenses as shall appear to him to have been
necessary or proper for the attainment of justice or for enforcing
or defending the rights of any party, but no costs shall be
allowed………by payment of special fees to counsel………". Counsel's fees
are a disbursement of the solicitor and seem to come within this
rule rather than O.99, r.37(22)(ii) RSC. The footnotes to these
rules as appear in the invaluable and well-known work on Practice
and Procedure in the Superior Courts, by O'Floinn and Gannon would
bear this out. It follows in my view that Mr Salafia cannot, as he
has sought to do, impugn the decision of the Taxing Master on the
basis that none of the criteria set forth in this rule were
addressed, in relation to Senior Counsel's Brief fee, by the Taxing
Master in his decision.
The discretion of the Taxing Master in
relation to counsel's fees had, prior to the enactment of s. 27 of
the 1995 Act, been distilled down to the proposition appearing in
cases such as Kelly v. Breen
[supra] and The State (Gallagher Shatter and Company) v.
De Valera [1987] ILRM
555 and expressed as being essentially that that
the Taxing Master should disallow a counsel's fee only if he was of
the view that no solicitor acting reasonably carefully and
reasonably prudently based on his experience in the course of his
practice would have agreed such a fee.
Prior to the enactment of s. 27 aforesaid,
the appropriateness of the fee marked by counsel was measured to an
extent by what was "the going rate" for such a case and in many
instances this criterion bore little if any relationship to the
amount of work done and time spent by counsel in preparing for the
hearing and presenting the case to the court. That feature of course
had the consequence of working both ways, as it were. In other
words, one case might have involved counsel in relatively little
work by way of preparation, and yet because of the nature of the
case and the amount of the damages either awarded at hearing, or
agreed on the steps of the court, the brief fee allowed would be
similar to one marked in a case of equal value in money terms but
which involved significantly more actual time and preparation. Prior
to the enactment of s. 27 of the 1995 Act, the taxing Master was
precluded from inquiring into the amount of work actually undertaken
by counsel in any particular case.
Section 27 has not replaced the provisions of
O.99, r.37(21) RSC, but has conferred additional powers upon the
Taxing Master in the matters of assessing the appropriateness of the
solicitor's instruction fee, counsel's fees, and the fee of any
expert witnesses called or engaged in any case. Those additional
powers include the power to examine the nature and extent of work
actually done by counsel (whether senior or junior), and to allow
only such fee or part of a fee as he "considers in his or her
discretion to be fair and reasonable in the circumstances of the
case".
In my view this
enactment has made sweeping changes to the manner in which costs are
taxed.
Firstly, it is
clear that the fees of junior counsel, which were always allowed on
the basis of two thirds of those of senior counsel, can now be
examined on the basis of the nature and extent of work actually done
by junior counsel. That of course can work both ways also depending
on whether junior counsel has done more or less work in the case
than senior counsel. The Taxing Master has the power to look at that
question now in a way which he did not prior to that
enactment.
Secondly, it
would seem to me that the level of the appropriate Brief fee for
counsel (be it senior or junior, the latter's being no longer
calculated only by reference to the level of the former's) is now
not to be based simply on what a solicitor acting reasonably and
reasonably prudently based on his experience in the course of his
practice would have agreed, but rather on the basis of what in the
opinion of the Taxing Master was fairly and reasonably necessary to
be incurred "for the attainment of justice or for enforcing or
defending the rights of any party".
It is the introduction of the Taxing Master's
view of what is "fair and reasonable" by s. 27(2) which appears to
effect a change from what was previously the rule appearing in O.99,
r.37(18) RSC where the Taxing Master was required to allow such fees
as shall "appear to him to be necessary or proper", and which allows
the Taxing Master to substitute his own views in this regard for the
opinion of the solicitor who was acting reasonably carefully and
reasonably prudently. Nevertheless, it must be noted also that in s.
27 it provides only that "the Taxing Master shall have the power…"
to examine both the nature and extent of work done and to allow a
fee which he considers fair and reasonable. It is not mandated by
the section that he avail of these powers, and this is in contrast
to the mandatory nature of the provisions of O.99, r.37(18) RSC. But
it seems to follow that the Taxing Master will now normally need to
exercise his discretion in the matter of fees by looking at the work
actually done and making his own assessment as to whether the fees
in question were fairly and reasonably "necessary for the attainment
of justice or for enforcing or defending the rights of any party".
It is presumably because
of the nature of the changes brought about by the section that
Kearns J. stated in Superquinn [supra] as follows at p.
480:
"It seems to me
that in the aftermath of the Act of 1995 any ruling of the Taxing
Master must of necessity, set out in some detail an analysis of the
work and the reasoning which leads to the determination made in
respect of solicitor's instruction fees and Counsel's fees,
particularly having regard to the powers and responsibilities
imposed on the Taxing Master by s. 27(1) and (2), and on the court
by s. 27(3), given that the Court may be called upon to review
taxation. "
In the
present case, the Taxing Master states in his Report that in
arriving at his determination on taxation he did in fact carry out
"an examination of the nature and extent of the work and services
rendered by both Solicitor and Counsel as is required pursuant to
Section 27 (1) and (2) of the Courts and Court Officers Act 1995".
So the question as to whether or not he is "required" to carry out
such examination or whether he simply has the power to do so, should
he consider it desirable or necessary, does not have to be finally
determined for the purpose of this case. He clearly has the power so
to do. Mr Salafia submits however that he erred in that task and in
the assessment of the appropriate fee to be
allowed.
In arriving at
what he considers to be a fair and reasonable fee necessary or
proper for the attainment of justice, the Taxing Master will
naturally draw upon his expertise and experience in the matter of
costs, and he may, and often does, have regard to what fees are
allowed on taxation in what are regarded by him to be comparable
cases. Judges called upon to review a taxation of costs have often
stated that of course no two cases are identical, and that therefore
they can only be seen as similar, but that is not a reason to
disregard them altogether as a guide in the assessment of fees in
the case at hand. But an allowance based only on one made in a
similar case could not, in my view, ever be an appropriate method to
adopt. But that is not to say that such a guide is not relevant and
useful to the Taxing Master in deciding what is a fair and
reasonable fee in the case at hand. However, it cannot be a
substitute for a close examination of all the features and
circumstances of a case, and even though I drew attention earlier to
the fact that the criteria set forth in O.99, r.37(22)(ii) RSC
appeared to apply only to the question of the solicitor's
instruction fee and not Counsel's fee, those very same criteria,
including the nature of the case, its complexity, the difficulty of
the issues involved, the time required to prepare the case,
including in appropriate cases the time required to research
specialist material to determine whether in the first place there is
an arguable case at all, and the skill, expertise and specialised
knowledge, seem to me to be matters which would have to be borne in
mind and had regard to by any Taxing Master bringing his mind to
bear upon the question of what is a Brief fee which is fair and
reasonable in order to attain justice when exercising his discretion
in accordance with the provisions of s. 27 of the 1995 Act.
Where a Brief fee, as
marked, is higher than what the Taxing Master considers fair and
reasonable, having had regard to all relevant factors, the party
whom he or she represented may (subject to any re-negotiation of the
fee which might take place) be called upon to discharge the
difference on the basis of what are called solicitor/client costs.
It has always been the case that party and party costs are not
calculated on the basis that the client will be fully indemnified in
respect of all costs, except in exceptional cases. It is the extent
of that difference which has the capacity to constitute an injustice
for the purpose of a review of the taxation by this Court by virtue
of the provisions of s. 27(3) of the 1995 Act. As already referred
to above, Kearns J. in Superquinn [supra] felt it appropriate to use
the same criteria for determining injustice in this regard, as has
been found to be appropriate by the Supreme Court is assessing
whether an award of damages was unjust - namely "unless an error of
the order of 25% or more has been established in relation to an item
under challenge." I have some hesitations about such a pragmatic
formula in the context of a costs item, because it does not in my
view allow for the fact that the same amount of work may be required
of Counsel in a case where the damages award is €100,000 as in a
case where the award is €300,000, giving rise to a similar level of
fee. In a situation where the fee marked in each case is €30,000,
and each is reduced by €10,000 on taxation, the impact on the
plaintiff in the first case is to the extent of 10% of the damages
received, whereas in the second case its impact is of the order of
only 3.33%. This demonstrates that where cases of different value
but requiring the same work are compared, what is not unjust in one
may be unjust in another. It seems to me therefore that the question
of what is just or unjust in this regard must be viewed on a case to
case basis, since different factors may be at play, rather than by
an arbitrary formula such as is entirely appropriate to the question
of the justice of a damages award per se.
In the present case, this Court can intervene
only if it is satisfied (1) that the Taxing Master has "erred as to
the amount of the allowance or disallowance", and (2) that this
error is such as to amount to being "unjust". I prefer to avoid the
use of the term "error of principle". It is not how the section is
expressed. In addition, it seems to me that the subsection permits
this court to intervene in circumstances where although it is
satisfied that the Taxing Master went about his task in a way that
was correct in every way, taking into account properly all relevant
matters and excluding irrelevant matters, including a close
examination of the work done and required to be done and so forth,
and in that way committing no error in principle as such, the Court
nevertheless may form the view that the figure actually allowed or
disallowed is, by being either too high or too low, unjust to the
party seeking the review.
Therefore the question before this Court
which is presented upon a review, having regard to the provisions of
s. 27(3) of the 1995 Act, is simply whether the Brief fee in the sum
of €26,000 for Senior Counsel is, in this particular case, wrong to
the point of being unjust to the plaintiff who may have to pay the
difference of €21,615.18 out of the award of damages in the sum of
€300,000 which she received. Such an error may well occur because
the Taxing Master has erred in the manner in which he has addressed
the issues to be addressed in forming his view of the amount, or it
may arise simply because having gone about his task correctly he has
arrived at a figure which works an injustice on the plaintiff.
I would be of the view
that it is no longer appropriate to have the same regard as
heretofore to so-called comparable cases when attempting to arrive
at the appropriate fee for the case. Some regard can be had, but its
importance has been diminished by the enactment of s. 27 whereby the
Taxing Master can look at the extent and nature of work actually
done. In my view it was an entirely appropriate thing to do when
fees could be based on a "going rate" or a rate in the market place,
rather than on work actually done. One of Mr Salafia's criticisms of
the decision in the present case is that the Taxing Master was
unduly influenced by the comparator cases to which he was referred
by the defendant's costs drawer, and that this prevented the Taxing
Master from approaching the question on the basis of work actually
done in this case, especially where there was considerable material
before the Taxing Master from which he could glean the extent of
work actually done. Having looked at the decision of the Taxing
Master where he refers to the comparator cases to which he was
referred, it seems to me that he perhaps allowed himself to be
unduly influenced by them, in as much as while he refers
specifically to the fact that they are only a guide, he added in his
report that they are "a very compelling guide". This would indicate
to me that he placed considerable reliance upon the comparators, and
as already stated I would be of the view that the significance of
comparator cases must be much less now since the enactment of s. 27
than prior to that when the "going rate" was much more relevant,
rather than the work actually required to be done and actually
done.
Mr Salafia was also
critical of the Taxing Master's decision in as much as it referred
to "a major significant factor in this case" being the fact that
there was only one expert witness called by the plaintiff at the
hearing, and that the reliance placed on the fact that only one
expert was called was erroneous given that it had been necessary as
part of the overall preparation for the case to consult many experts
until they found one whose evidence was supportive of the
plaintiff's case. The submission in that regard is that this is a
case which required much investigative work on the part of Senior
Counsel, and was not simply reliant upon skills of advocacy in court
at the hearing. In omitting to have regard to this feature of the
case, it was submitted that the Taxing Master had not had sufficient
regard to the complexity and unusual nature of the case, and that it
involved the mastery of a considerable amount of research by Senior
Counsel going beyond normal preparation even for a medical
negligence case.
In his
decision the Taxing Master has stated that the only liability
witness was Mr Russell, the neuro surgeon, that a significant amount
of discovery documentation was examined by Counsel when settling the
Statement of Claim, that there was nothing unusual about Counsel
being involved in a medical negligence case throughout the case,
that the notes provided by Senior Counsel do not disclose anything
unusual as far as the work done is concerned, above and beyond what
normal professional preparation for the case, and that the Brief fee
allowed adequately remunerates for all his work including the first
day's hearing. He stated that the fee marked was "excessive and
exceptionally high".
The
Taxing Master does not set forth the contents of the letter from
Senior Counsel to his instructing solicitor which sets out the basis
for the fee marked by him, and against which no evidence was given
before the Taxing Master. That said, I accept of course that the
Taxing Master had before him the entire of the solicitor's file and
the papers in the case. It is desirable that I should refer to
certain passages in this letter. Having referred to the issues
raised in the case he continues:
"…This was an exceptionally complicated
medical negligence action in which I was first instructed in 1994
when I settled various papers in relation to discovery. No
explanation for the plaintiff's condition was forthcoming from
either of the defendant's hospitals and agents had to embark on a
prolonged discovery procedure - perseverance in which was absolutely
vital for the success of the action. Indeed, it was on the basis of
such documents as had been obtained on discovery at that time that
the statement of claim was drafted……….
A major difficulty was in obtaining the
evidence of a medical witness to support the plaintiff's case.
Agents indeed sought a number of reports from different experts all
of which were negative and which I found to be unsatisfactory and
which, in the event were themselves proved t be
wrong.
………A
conservative estimate of the pre-trial work involved greatly exceeds
150 hours.
The
defendants by their Defence denied liability for negligence both in
relation to the appendectomy and the subsequent treatment by
neurectomy of the plaintiff's meralgia
paresthetica.
The
defendants were vigourously pursued in successive motions to
particularise allegations in their Defence and to complete their
discovery. This was essential to the successful prosecution of the
case. Thus for example the Defence were forced in particulars to
make vital concessions as to what had been told to the plaintiff
concerning the risks involved in a
neurectomy.
………
Since the opinions which had been obtained --
from both a general surgeon and a neurologist -- had proved
negative, I had to do an extensive search of medical literature to
obtain a basis for fixing the defendants with liability. The
literature ultimately relied upon is enclosed and extends to over
thirty articles and excerpts from medical treatises. However it
should be remembered that the task of research extended not only to
considering and assimilating this relevant literature but also many
more articles and texts from which these were ultimately selected as
being the most relevant.
There were numerous consultations with agents
on an ongoing basis during the lifetime of this case………Agents were
given a commitment on my part that I would attend exclusively to the
trial of the action.
Preparation for the trial involved, in
addition, mastery of a large and complicated discovery relating to
affidavits concerning treatment at Cashel and Waterford, and
documents furnished under the Freedom of Information Act.
Comprehension of the discovery documents was extremely difficult and
highly time-consuming as the manner in which they were furnished was
calculated to mislead with no order on the documents and many being
of poor quality writing or copy.
Moreover, preparation had to proceed on the
basis that at least six medical witnesses would be called on behalf
of the defendants, and a number of medical reports were furnished on
the basis that several at least of these experts would be called on
behalf of the defendants………"
It is worth referring also to the fact that
only one Senior Counsel was briefed in this
case.
I believe that a
reading of this letter, and there was no contradictory evidence
before the Taxing Master, indicates that the manner in which the
case was considered by the Taxing Master has not given sufficient
weight to the pre-trial work which was required to be done. I refer
in particular to the reliance placed in the report on the fact that
there was only one liability witness called, and that the discovery
documentation had been to hand at the Statement of Claim stage. The
Statement of Claim was settled in November 1998, whereas the hearing
was in July 2001, nearly three years later. It was inevitable in
those circumstances, in my view, that this documentation would have
to be re-visited as part of the trial preparation and Senior Counsel
could not be reasonably expected to rely on his examination of the
documentation some three years previously. In addition, I accept the
point made by Mr Salafia, that the examination and understanding of
the discovery documentation for the purpose of settling a Statement
of Claim could not be adequate for the purpose of equipping Senior
Counsel to properly and thoroughly cross-examine any expert medical
witnesses in their area of specialist knowledge. In my view the
Taxing Master has undervalued the extent of that work which was
necessary as part of the preparation of this case, and that this is
evident from the decision itself. I have already set forth a passage
from the judgment of Kearns J. in Superquinn [supra] where he refers
to the necessity to "set out
in some detail an analysis of the work and the reasoning which leads
to the determination made in respect of solicitor's instruction fees
and Counsel's fees…" In my
view this has not occurred in the present case, and if this Court is
to be in a position to carry out a review in the way contemplated by
s. 27(3) of the 1995 Act, it must be able to do so in the light of
clearly set forth findings in the Taxing Master's Report. There is a
greater onus upon the Taxing Master perhaps than heretofore given
that he must now justify his decision on the basis that it is fair
and reasonable, as opposed to being in line with the "going
rate".
It is probably
inevitable that the Taxing Master in most cases approaches his task
from the point of view that the fees marked are higher than
solicitor and counsel are expecting to be allowed. However it cannot
be reasonable that such is assumed to be the case in all cases. To
accept this would be to reflect upon the integrity of counsel who in
the present case has set out in a clear and detailed way the basis
on which his fee has been marked. Perhaps such an inference can be
more properly drawn in a case where the fee is not accompanied by
such a detailed explanation for the size of the fee as in the
present case. Clearly there is an onus on the solicitor to satisfy
the Taxing Master as to the necessity and appropriateness of any
particular disbursement. The other side can submit evidence in
rebuttal and make objections, as often happens. But the Taxing
Master must have appropriate regard for the materials before him,
particularly when making a decision to disallow almost half of the
fee claimed, as in the present case. In my view he has fallen into
error, and in a way which in the present case could rightly be
referred to as an error of principle, although I have expressed
reluctance to speak of it in those terms for the reason already
given. I believe that given what is known about the difficulties
attendant upon the plaintiff's case from the outset, this was a case
which could easily have been lost or not even commenced were it not
for the energetic pursuits of the plaintiff's solicitor and Senior
Counsel in investigating the issues so thoroughly and carefully
prior to the delivery of the Statement of Claim. It is a case
perhaps which many lawyers would have discouraged the plaintiff from
pursuing at all. In the events which happened the plaintiff's case
was won and an award of damages which is said to represent the full
value of the plaintiff's claim was achieved, but not without
considerable and documented hard work and effort outside the
courtroom itself - i.e. pre-trial.
Even allowing for the fact that the fee must
be looked at from the 2001 stand-point, I have little doubt that a
Brief fee of €37,500 would be justifiable in this case, particularly
when one takes into account the fact that refreshers were allowed in
the sum of €4000, and that the Brief fee includes an allowance for
the first day's hearing. Since no cross- review by the defendant is
before the Court in relation to the two thirds basis of calculation
in respect of the Brief fee for Junior Counsel, I am satisfied in
this case that that fee should be increased by the same margin to
the sum of €25,000.
To
some extent the size of the award of damages is irrelevant to the
size of the Brief fee since the enactment of s. 27 of the 1995 Act,
because of the emphasis on the work actually done, rather than
hypothetical work taking into account the size of the damages. There
can however be some regard had to that aspect. It must also be
remembered that s.27 allows the Taxing Master to take account of the
amount of necessary work actually done by Counsel, and which might
not be done in what is referred to in a so-called comparable case
value-wise, in order to justify a fee which is in excess of the so
called "going rate", based on amount, and not solely for the purpose
of reducing the fee claimed because it may be higher than is thought
normal.
The remaining
question is whether the degree to which the decision is an error is
unjust to the plaintiff. I prefer not to be confined to thinking of
this question solely by reference to the 25% yardstick already
referred to, although in the present case that formula would render
the decision unjust since the difference is greater than 25%. One
approach would be to ask would it be unfair to ask this plaintiff to
pay to her Senior Counsel a sum of €21615.18 out of her own
resources, rather than require that the defendant pay this sum. In
order to answer that question in the negative, it would surely be
incumbent upon the Court to find and set forth some reason why she
should do so, in circumstances where the Court is of the view that a
fee of €37,500 was justifiable given the particular circumstances of
this case.
In some cases
the Court might be able to identify some special feature, such as a
special fee or retainer fee element in the fee marked, and for which
it would not be unfair to ask the successful plaintiff to discharge,
but that is not the case in the present case, even though the Taxing
Master expresses the view that the size of the full fee marked would
represent a special fee.
I am unable to discern any reason why it
would be fair and just to ask the plaintiff to discharge the amount
marked on the Brief exceeds that allowed by the Taxing Master. To do
so would accordingly be to render the decision of the Taxing Master
unjust to the plaintiff. I can well envisage cases where the margin
of error as to amount might be so slight as to not amount to an
injustice, or even that in the context of a very high award the
amount by which the allowance was increased by the Court would make
little impact on the plaintiff's resources. I am not satisfied that
such would be the case for the present
plaintiff.
I will order
accordingly.
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